A majority finding of the Supreme Court yesterday held that the chairperson of the Refugee Appeals Tribunal had validly reassigned appeals by two non-nationals because the original appeals officer allegedly delayed giving decisions.
One of the court's judges said that from the point of view of the two refugees what happened to them "must be bewildering in the extreme".
Both asylum seekers were refused asylum status and their appeals came before a member of the Refugee Appeals Tribunal. However, they heard nothing until they got letters advising of the purported reassignment of their cases to another member of the tribunal.
Mr Justice Nial Fennelly, giving the majority decision of the court of three (Chief Justice John Murray agreed), said the particular tribunal member heard a considerable number of other refugee appeals without pronouncing decisions on them. This caused concern in the Refugee Legal Service and to the chairperson of the Refugee Appeals Tribunal.
In May last year the chairperson decided to reassign a number of cases, including those of the two applicants, to other tribunal members. The two refugees had complained that it was unfair to reassign after there had been an oral hearing.
In the High Court Ms Justice Mary Finlay Geoghegan had ordered that the person who originally heard the two appeals should make a decision in each case. She held that the chairperson of the tribunal in these cases had no power to reassign the appeals. The tribunal and Minister for Justice appealed the finding.
Mr Justice Fennelly said the Refugee Act of 1996 conferred powers on the chairperson to "assign to each member the business to be transacted". But he believed that the High Court judge erred in deciding the chairperson had the power to remove or reassign business in the event of illness or legal incapacity but not on the grounds related to the pursuit of the tribunal's obligation to ensure the expeditious dispatch of its business.
Such interpretation, said Mr Justice Fennelly, risked the description of judicial legislation. In his opinion the chairperson had general powers to assign and reassign cases already assigned. The chairperson was confronted with a difficult situation.